1. APPOINTMENT
1.1 CLIENT hereby appoints MYCALLSA, who accepts such appointment, to provide a Voice Over Internet Protocol Telephone Service (VOIP SERVICE) with effect from the Sign-up date.
1.2 CLIENT acknowledges and agrees that provision of the VOIP SERVICE shall be subject to both Technical and commercial feasibility which is at the sole discretion of MYCALLSA.
2. CONTRACT TERM
2.1. Notwithstanding the SIGNATURE DATE hereof, MYCALLSA shall provide the VOIP SERVICE to CLIENT for the INITIAL TERM commencing on the EFFECTIVE DATE.
2.3 The MYCALSA VOIP SERVICE AGREEMENT TERM is binding for a contracted period of no less than 24 months.
2.4 Once the initial contract term of 24 months have lapsed, the contract term will renew on a month-to-month basis until the MYCALLSA VOIP SERVICE AGREEMENT is terminated according to the provisions of clause 18.
2.5 Either party may terminate the provision of VOIP SERVICE by MYCALLSA to CLIENT at any time according to the provisions of clause 18.
2.6 Either party may terminate the according to the provisions in clause 18.
3. FEES AND CHARGES
3.2 Upon entering a VOIP SERVICE AGREEMENT with MYCALLSA, the CLIENT shall pay to MYCALLSA the following fees or charges in respect of the VOIP SERVICE.
3.2.1 monthly, in advance, the fixed VOIP SERVICE fees; and
3.2.2 any other amounts set out in THIS AGREEMENT as and when same becomes due; and
3.2.3 Value Added Tax (VAT) at the applicable rate on all amounts.
3.3 MYCALLSA shall at the beginning of each month prepare a tax invoice addressed to CLIENT reflecting the amounts owing by CLIENT to MYCALLSA in respect of the VOIP SERVICE.
3.4 CLIENT acknowledges that all fees and charges due to MYCALLSA will be payable in local currency, free from deduction or set-off of any amount of whatsoever nature or for whatsoever reason.
3.5 CLIENT shall not be entitled to defer or withhold any payment due to MYCALLSA by reason of any alleged claim for losses or damages howsoever arising or non-performance by MYCALLSA.
3.6 CLIENT agrees that MYCALLSA shall be entitled from time to time to increase or vary the charges payable by CLIENT to MYCALLSA in respect of VOIP SERVICE. MYCALLSA shall furnish CLIENT with 7 (seven) days’ prior written notice of any such increase or variation to the call charge rate or variable usage fees. In respect of an intended increase to the fixed VOIP SERVICE fee, MYCALLSA shall furnish CLIENT with 30 (thirty) days prior written notice of any such increase. Should the CLIENT object in writing to the proposed fee increase before its effective date and, failing AGREEMENT between the parties, the CLIENT shall be entitled to terminate this AGREEMENT.
3.7 MYCALLSA’S monthly tax invoice shall serve as prima facie proof of the amounts owed by CLIENT to MYCALLSA in terms hereof and of any other facts stated therein and should CLIENT dispute the amount charged in respect of any VOIP SERVICEs rendered by MYCALLSA, then CLIENT shall bear the onus of proving that MYCALLSA’S tax invoice is incorrect in such respect.
4. PAYMENT
4.1 All fees and charges payable by CLIENT to MYCALLSA in terms of the VOIP SERVICE shall be effected:
4.1.1 by way of a debit order drawn against a South African bank account or a MasterCard or VISA credit card in the case that CLIENT grants authorisation for such debit order on the SUBSCRIPTION FORM ; or
4.1.2 Where authorised by MYCALLSA, by way of electronic funds transfer directly into MYCALLSA’S bank account. The onus of proof of payment shall at all times vest on CLIENT. Notwithstanding confirmation of payment by CLIENT, CLIENT agrees that payment shall only be deemed to have been made to MYCALLSA when the monies remitted by the CLIENT have cleared into MYCALLSA’S bank account.
4.2 Payment shall be due within 7 (seven) days of MYCALLSA’S tax invoice date or where payment is effected by debit order, on MYCALLSA’S debit order date. Nonreceipt of invoices by CLIENT for any reason whatsoever shall not be regarded as a valid reason for late or non-payment.
4.3 Should any debit order be returned unpaid or stopped for any reason or should MYCALLSA exercise its right to suspend the provision of VOIP SERVICE due to late or non-payment of any monies due in terms hereof by CLIENT then CLIENT shall pay an administrative charge equivalent to the greater of R70.00 or 5% of the debit order amount for each such non-payment, suspension or any other breach of THIS AGREEMENT which amount shall be payable upon demand by MYCALLSA.
4.4 In the event of CLIENT requesting to pay for the VOIP SERVICES by EFT or any debit order being unpaid or credit card transaction failing or resulting in a chargeback or CLIENT failing to inform MYCALLSA timeously of its new credit card or bank account particulars, then MYCALLSA reserves the right, in its sole and absolute discretion, to revoke all credit facilitates previously granted to CLIENT.
4.5 Any amount falling due for payment by CLIENT to MYCALLSA in terms of or pursuant to THIS AGREEMENT which is not paid on due date shall bear interest calculated from the invoice date until date of payment at a rate of 1.5% (one comma five percent) per month, monthly in arrears. Notwithstanding this, MYCALLSA reserves the right to suspend the VOIP SERVICE to CLIENT immediately if CLIENT is in default of any payment which is due but not paid. Such suspension shall be without prejudice to any of the rights of MYCALLSA that have accrued prior to the date of suspension.
4.6 CLIENT agrees and acknowledges that a certificate given under the hand of a manager or director of MYCALLSA whose status and authority need not be proved shall be considered prima facie proof of the amount due and payable to MYCALLSA for any legal proceedings of whatsoever nature.
5. OBLIGATIONS OF CLIENT
5.1 CLIENT shall provide MYCALLSA with whatever information, assistance or cooperation is required in order for MYCALLSA to render the VOIP SERVICES in terms of THIS AGREEMENT.
5.2 CLIENT shall supply MYCALLSA and its designated employees with access to CLIENT’S premises at all reasonable times and outside of ordinary working hours where this is reasonably necessary for the duration of this AGREEMENT where required in order to provide the VOIP SERVICE.
5.3 CLIENT shall acquire and maintain an active and reliable Internet Service Connection of at least 4mbps and an adequate Wireless router for MYCALLSA Equipment to be connected to.
5.4 CLIENT shall remain responsible for trouble shooting any Internet Connectivity issues with its own Internet Services Provider.
5.5 CLIENT shall designate in writing an authorised representative to whom MYCALLSA will report and from whom it may obtain instructions.
5.6 The CLIENT undertakes, insofar as may be relevant, that it shall not knowingly use the VOIP SERVICE for the creation, storage or dissemination any illegal content nor shall it send or promote the sending of any spam.
5.7 The CLIENT commits itself to lawful conduct in the use of the VOIP SERVICES, including copyright and intellectual property rights, insofar as may be necessary.
5.8 CLIENT undertakes to notify MYCALLSA of any change in the primary address from which the VOIP SERVICEs are utilised.
5.9 MyCALLSA Cloud PABX Service CLIENTs shall have, or acquire, an active and reliable local LAN Network and shall remain responsible for the overall maintenance of the Local LAN Network as well as all associated costs.
6. OBLIGATIONS OF MYCALLSA
6.1 MYCALLSA shall provide the VOIP SERVICE on the terms and conditions stipulated herein and shall comply with all reasonable requests of CLIENT (via the client representative) from time to time.
6.2 MYCALLSA shall provide the VOIP SERVICE to South African telephone numbers only.
6.3 MYCALLSA shall not issue any press release, make or publish any public statement or other communication in each case relating to, connected with or arising out of this AGREEMENT or the rendering of the VOIP SERVICE, nor use the VOIP SERVICE provided to advertise any of its VOIP SERVICEs or products, without the prior written consent of CLIENT.
7. DELIVERABLES BY THIRD PARTIES
7.1 CLIENT acknowledges that various third party VOIP SERVICE providers are directly and/or indirectly involved in the provision of the VOIP SERVICE.
7.2 CLIENT indemnifies and holds MYCALLSA harmless against all and any loss, claim, injury or damage which it may sustain as a result of the failure of such third party as a consequence of which MYCALLSA’S performance is compromised in any way, or for any circumstances beyond its reasonable control.
8. EQUIPMENT AND MAINTENANCE
8.1 MYCALLSA will provide, install and maintain MYCALLSA EQUIPMENT at CLIENT’S premises.
8.2 CLIENT shall provide MYCALLSA and/or its appointed agent or sub contractors with such access as is reasonably required and any technical/personnel assistance reasonably necessary for the installation, maintenance and de-installation of the MYCALLSA EQUIPMENT including, without limitation, electricity supply and suitable environmental conditions for the housing of the MYCALLSA EQUIPMENT.
8.3 MYCALLSA and/or its appointed agent or sub contractors will endeavour to notify CLIENT in advance where MYCALLSA requires CLIENT to make such access available.
8.4 CLIENT will only use MYCALLSA EQUIPMENT in accordance with any instructions MYCALLSA provides to CLIENT from time to time. In particular, CLIENT shall not tamper with or attempt to change any aspect of the functioning of MYCALLSA EQUIPMENT in any manner whatsoever.
8.5 MYCALLSA shall not be liable for any damage or loss howsoever caused, resulting from a fault of any kind within MYCALLSA EQUIPMENT and/or any equipment belonging to CLIENT.
8.6 All risk of loss or damage, howsoever arising, resulting from the MYCALLSA EQUIPMENT on CLIENT’S premises will remain vested with CLIENT for an amount no less than the full replacement value of the MYCALLSA EQUIPMENT.
8.7 MYCALLSA EQUIPMENT is and shall remain the property of MYCALLSA unless specifically purchased from MYCALLSA by the CLIENT and paid for in full.
8.8 CLIENT will be liable to MYCALLSA for any loss or damage to MYCALLSA EQUIPMENT except in so far as any such loss or damage is attributable to the grossly negligent or wilful act or omission of MYCALLSA, its agents or subcontractors.
8.9 It is the CLIENT’s responsibility to insure the EQUIPMENT for damages or loss. CLIENT shall become liable for an amount equal to the full replacement value of the MYCALLSA EQUIPMENT if the equipment is not adequately insured.
8.10 Upon termination of this AGREEMENT for whatever reason CLIENT shall return to MYCALLSA or its nominated contractor the MYCALLSA EQUIPMENT. In the event that CLIENT refuses to release the MYCALLSA EQUIPMENT to MYCALLSA within 7 (seven) days of said termination, CLIENT shall become liable for an amount equal to the full replacement value of the MYCALLSA EQUIPMENT.
9. IMPROPER USE
9.1 CLIENT may use the VOIP SERVICE for lawful purposes only. CLIENT warrants that it is aware of and has taken note of all applicable legislation and/or regulations pertaining to the VOIP SERVICE and shall do all things necessary to fully comply therewith.
9.2 CLIENT will not (nor will CLIENT authorize or permit any other person) to use VOIP SERVICE:
9.2.1 to send or receive any material which is in violation of any law, regulation, regulatory authority or which is defamatory, offensive, abusive, indecent, obscene or menacing, or in breach of confidential, privacy, trade secrets, or in breach of any third party intellectual property rights, or in breach of any other rights;
9.2.2 to cause any annoyance or inconvenience;
9.2.3 in breach of any instructions MYCALLSA have provided to CLIENT in respect of the use of VOIP SERVICE; and/ or
9.2.4 other than in conformance with the rules of any regulatory authority.
9.3 Any breach of this clause by CLIENT shall be deemed to be a material breach of this AGREEMENT.
9.4 MYCALLSA shall be entitled to suspend the VOIP SERVICE if, during the CLIENT’S use of the VOIP SERVICE, MYCALLSA’S network or technical infrastructure is or potentially may be jeopardised, harmed and/or impeded in any manner. However, should MYCALLSA be able to notify and/or assist CLIENT prior to the said suspension, MYCALLSA undertakes to do so.
9.5 CLIENT hereby indemnifies MYCALLSA and holds MYCALLSA harmless against any claim by any third party arising directly or indirectly out of the use by CLIENT of the VOIP SERVICE, including without limitation of any claim due to the use of the VOIP SERVICE for unlawful purposes.
9.6 MYCALLSA shall not monitor or intercept the content of CLIENT’S communications unless required to do so by law. Notwithstanding this, CLIENT agrees that MYCALLSA may store call detail records as required for billing purposes.
10. ACCEPTABLE USE POLICY (AUP)
10.1 This Acceptable Usage Policy (“AUP”) serves to define the accepted behaviour of our CLIENTS, and is intended to maintain the integrity and quality of the service and to protect MYCALLSA from abuse. CLIENTS are required to adhere to all the policies specified in this AUP without exception.
10.2 Acceptable usage of MYCALLSA VOIP SERVICES is viewed as less than 2000 minutes per MYCALLSA Telephone, per month.
10.3 Should CLIENT phone calls exceed 2,000 minutes per telephone, per month MYCALLSA may review CLIENT VOIP SERVICE usage to determine whether there is a material breach of the SERVICE AGREEMENT.
10.4 CLIENT VOIP SERVICE phones calls exceeding 2000 minutes may cause MYCALLSA to:
10.4.1 Suspend the CLIENT’s outbound telephone calls within 24 hours of the usage reaching the unacceptable levels. CLIENTS that are restricted by MYCALLSA in this manner in a calendar month will be returned to their full-service privileges at the beginning of the subsequent month.
10.4.2 Cut the CLIENT’s outbound telephone calls after 1 minute has lapsed. CLIENTS that are restricted by MYCALLSA in this manner in a calendar month will be returned to their full-service privileges at the beginning of the subsequent month.
10.5 CLIENT VOIP SERVICE phones calls exceeding 3000 minutes on any MYCALLSA phone is a breach of the ACCEPTABLE USAGE POLICY and may result in termination of the SERVICE AGREEMENT.
10.6 MYCALLSA reserves the right to terminate the account of a CLIENT whose telephone usage continuously breaches 2000 minutes per month.
10.7 The CLIENT shall not use this VOIP SERVICE for mass calling purposes including but not limited to services such as telemarketing, surveys or questionnaires, paid research, online training, call centre or helpline services. If it is found that this clause has been breached by the CLIENT, the CLIENT agrees that all such related telephone costs will be billed separately to the CLINET and the CLIENT agrees that it will be fully liable to pay such fees to MYCALLSA in full upon the next invoice date. MYCALLSA reserves the right to cancel the SERVICE AGREEMENT if at its sole discretion it is of the opinion that this cause has been breached.
10.8 The CLIENT shall not use this VOIP SERVICE to call any per-minute billing or similar PAID telephone call service, including but not limited to Telephonic SEX CHAT LINES, LEGAL SERVICED lines or any other CONSULTANCY SERVICES, COMPETITION LINES, etc. If it is found that this clause has been breached by the CLIENT, the CLINET agrees that all such related telephone costs will be billed separately to the CLINET and the CLIENT agrees that it will be fully liable to pay such fees to MYCALLSA in full upon the next invoice date. MYCALLSA reserves the right to cancel the SERVICE AGREEMENT if at its sole discretion it is of the opinion that this cause has been breached.
10.9 This AUP may be amended from time to time as required by legal developments. While MYCALLSA will take steps to notify CLIENTS of amendments CLIENTS retain the sole responsibility for acquainting themselves with such amendments and will be regarded as having agreed thereto through continued use of the service.
11. UNLIMITED PHONE CALLS
11.1 UNLIMITED PHONE CALLS imply that VOIP call quality is not restricted by MYCALLSA in any way and that there is no limit to the registered Telephone networks that the CLIENT can make and receive telephone calls from within South African, including but NOT LIMITED to Landline, Cellular, VOIP Telephones and Call Centres (e.g. 0800, 061, etc.).
11.2 Outbound calls via MYCALLSA VOIP SERVICE is however restricted to South African Telephone numbers, outbound telephone calls to International numbers is not allowed.
12. WARRANTIES
12.1 Save as expressly set out in this AGREEMENT, MYCALLSA does not make any representations nor gives any warranties or guarantees of any nature whatsoever in respect of the MYCALLSA EQUIPMENT or the VOIP SERVICE and all warranties which are implied or residual at common law are hereby expressly excluded.
12.2 Without limitation to the generality of clause 12.1, MYCALLSA does not warrant or guarantee that the information transmitted by or available to CLIENT by way of the VOIP SERVICE or the MYCALLSA EQUIPMENT:
12.2.1 will be preserved or sustained in their entirety;
12.2.2 will be suitable for any purposes,
12.2.3 will be free of inaccuracies, defects, bugs or viruses of any kind; and
12.2.4 MYCALLSA assumes no liability, responsibility or obligations in regard to any of the exclusions set forth in this clause 12.1, and 12.2 above.
12.3 CLIENT is advised that the VOIP SERVICE should not be relied on for access to emergency VOIP SERVICEs associated with the numbers 112, 10111, 10117 or the likes. If the VOIP SERVICE is utilised to attempt an emergency call to any one of these numbers, CLIENT is also advised that he may experience delays in getting through to the emergency call centre or he may be re routed to a call centre far from the location of the call. CLIENT acknowledges that in such circumstances the emergency call centre will not be able to determine the physical location of the call and that CLIENT should inform the dispatcher of his actual location for identification purposes.
13. LIMITATION OF LIABILITY
13.1 Except for any deliberate act or gross negligence on the part of MYCALLSA, its servants or agents, and except as otherwise expressly provided herein to the contrary, MYCALLSA shall not be liable to CLIENT or any third party for any loss or damage (including consequential or incidental loss or damage which shall include but shall not be limited to loss to property or of profit, business, goodwill, revenue or anticipated savings) of whatsoever nature or for any costs, claims or demands of any nature whether asserted against MYCALLSA or against CLIENT by any party arising directly or indirectly out of the MYCALLSA EQUIPMENT or the VOIP SERVICE, their use, access, withdrawal or suspension or out of any information or materials provided or not provided, as the case may be, by or from their use.
13.2 Subject to clause 13.1 above, the entire liability of MYCALLSA, and CLIENT’S exclusive remedy for damages from any cause related to or arising out of this AGREEMENT, regardless of the form of action, whether in contract or in delict, will not exceed the average aggregate of the fees and charges paid by CLIENT to MYCALLSA under this AGREEMENT over the continuous period of the 6 (six) months directly prior to such claim being instituted.
13.3 Due to the need to conduct maintenance, repair and/or improvement work from time to time on the technical infrastructure by means of which the VOIP SERVICE is provided, the provision of the VOIP SERVICE may be suspended by MYCALLSA from time to time, with the giving of at least 48 hours' notice, where possible, and all liability on the part of MYCALLSA for any loss or damage (whether directly or indirectly or consequential) thereby incurred or for any costs, claims, or demands of any nature arising there from, is specifically excluded and the provision of clause 13.1 above shall apply mutatis mutandis to such exclusion.
13.4 This clause shall survive termination for any reason whatsoever of the AGREEMENT.
14.CONFIDENTIALITY AND PROPRIETARY PROTECTION
14.1 The parties hereto shall to the extent necessary exchange such proprietary or confidential information as is reasonably necessary for each to perform its obligations and exercise its rights under this AGREEMENT.
14.2 All information relating or pursuant to this AGREEMENT provided by either party to the other, whether oral or written, and whether or not identified as confidential or proprietary, is hereby deemed to be confidential and proprietary information. As such, each party hereto shall share such proprietary information in the strictest of confidence and shall not use such information for any purpose other than as contemplated in this AGREEMENT.
14.3 Clause 14 will survive the termination of this AGREEMENT.
15.BREACH
15.1 Unless otherwise inconsistent with any other provision of this AGREEMENT, in the event of either party committing a breach of any of the provisions of this AGREEMENT, then the party which is not so in breach (hereinafter referred to as "the aggrieved party") shall be entitled to give the defaulting party written notice to remedy the breach. If the defaulting party fails to comply with that notice within 7 (seven) days of receipt thereof the aggrieved party shall be entitled to cancel this AGREEMENT or to claim specific performance, in either event without prejudice to the aggrieved party's INITIAL Terms and Conditions of VOIP SERVICE rights to claim damages. The aforesaid is without prejudice to such other rights as the aggrieved party may have at law.
15.2 Either party shall be entitled, but not obligated, to terminate this AGREEMENT upon 7 (seven) days prior written notice in one or more of the following circumstances:
15.2.1 In the event of a party committing an act of insolvency;
15.2.2 In the event of a party to the contract taking any steps to reach a compromise with or to make an offer of compromise to any of its creditors;
15.2.3 In the event of a party effecting a transfer of its estate to any third party;
15.2.4 In the event of a party allowing a judgement against it to remain unresolved for more than 30 (thirty) days without taking immediate steps to have it rescinded and successfully prosecuting the application for rescission to its final end;
15.2.5 In the event of a party being placed in liquidation or under judicial management (whether provisionally of finally);
15.2.6 With respects to 15.2.4 and 15.2.5, not appeal the judgement that was granted against it.
15.3 If MYCALLSA terminates this AGREEMENT as provided for in clause 15.1 hereof, or if CLIENT repudiates the AGREEMENT at any time after signature of this AGREEMENT; MYCALLSA shall be entitled to:
15.3.1 Claim all outstanding monies as on the date of repudiation and/or termination of this AGREEMENT, whether or not such monies are then due, owing and payable;
15.3.2 Treat all outstanding amounts as immediately due and payable which would have become due and payable over the balance of the period which has not expired in terms of the AGREEMENT;
15.3.3 Immediately suspend and/or terminate the VOIP SERVICE provided to the CLIENT in terms of this AGREEMENT,, CLIENT consenting to such termination under these circumstances and that the termination of the VOIP SERVICE not amounting to an act of spoliation;
15.3.4 Claim any and/or all damages that MYCALLSA might incur as a direct and/or indirect result of CLIENT’S repudiation and/or breach of this AGREEMENT;
15.3.5 Claim the costs of any legal proceedings instituted against CLIENT in any court of law on a scale as between attorney and own client, irrespective as to whether summons has been issued or not; and/or
15.3.6 To retain as a genuine pre estimate of its damages all amounts already paid by CLIENT in terms of this AGREEMENT;
16. LEGAL RIGHTS
16.1 Nothing contained in this policy shall be construed to limit MYCALLSA' rights or remedies in any way with respect to any of the aforementioned activities, and MYCALLSA reserves the right to take any action that it may deem appropriate with respect to such activities, including without limitation:
16.1.1 Investigating suspected violations of this AUP.
16.1.2 Taking action to recover costs and expenses incurred in identifying and resolving abuse.
16.1.3 Terminating users' access to and use of the MYCALLSA service.
16.1.4 Levying cancellation charges to cover MYCALLSA costs in the event of termination of the MYCALLSA service.
16.2 In addition, MYCALLSA reserves all available rights and remedies with respect to such activities at law or in equity.
17. SUSPENSION OF SERVICES
17.1 MYCALLSA may lawfully suspend, withdraw all or part of any Service at any time until further notice to the CLIENT if, in MYCALLSA's reasonable discretion:
17.1.1 The continued provision of the Services will cause MYCALLSA to breach an applicable law or be in contravention of its Licenses;
17.1.2 The CLIENT is in breach of or otherwise is not complying with any of the provisions of this AGREEMENT; and
17.1.3 Any overdue tax invoice for charges billed by MYCALLSA to the CLIENT remains unpaid for longer than 7 (seven) days.
17.2 The exercise of MYCALLSA's right to suspend the Services under this clause 15 is without prejudice to any other remedy available to MYCALLSA under this AGREEMENT and does not constitute a waiver of MYCALLSA's right to subsequently terminate this SERVICE AGREEMENT.
17.3 Where MYCALLSA has suspended the Services in terms of clause 17.1, MYCALLSA may:
17.3.1 Refuse to reconnect the Services unless precluded by any law or order of court; and
17.3.2 If it agrees to reconnect the Services, require the CLIENT to pay a reconnection fee in advance as a pre-condition to making the Services available again.
18. TERMINATION
18.1 Termination for Convenience:
18.1.1 Either Party shall be entitled to terminate this AGREEMENT by providing the other Party with 30 (thirty) days’ prior written notice to that effect.
18.1.2 Termination in accordance with clause 18.1.1 above shall not affect the Service Term, which shall continue, in full force and effect, in accordance with the terms and conditions of this AGREEMENT as if this AGREEMENT had not been terminated, until the end of the Service Term.
18.1.3 If CLIENT terminates the SERVICE and/or breaches this SERVICE AGREEMENT prior to the end of the INITIAL PERIOD or any subsequent 1 (one) month renewal period thereafter, CLIENT shall pay to MYCALLSA all charges for VOIP SERVICEs provided up to and including the actual date of such termination and/or breach (whether such charges are then due and payable or not) together with a cancellation charge equal to the balance of the applicable charges (in effect at the time of cancellation) for such cancelled VOIP SERVICEs that otherwise would have become due for the unexpired portion of the term. The Client shall remain liable for the balance of service fees which would have been paid up to the end of the originally contracted SERVICE AGREEMENT term. All outstanding amounts which would have become due and payable over the balance of the period which has not expired in terms of the agreement will become immediately due and payable.
18.1.4 Notwithstanding the Service Term, the CLIENT shall be entitled in its sole discretion and without cause, to the terminate one or more VOIP TELEPHONE SERVICE by giving MYCALLSA 30 (thirty) days’ prior written notice, which termination shall be subject to the early termination charges.
18.2 Termination for cause:
18.2.1 In the event that there is a breach by either Party, the non-defaulting Party shall be entitled to provide the defaulting Party with 30 (thirty) days’ written notice to remedy such breach, including but not limited to breaches set out below, a meeting of that Party convened to consider or pass a resolution, or a declaration is made in respect of that Party, a petition is presented in respect of that Party, legal proceedings are commenced by or in respect of that Party or any other step is taken, for the provisional or final winding-up, sequestration, judicial management, curatorship or dissolution of that Party’s assets, business, undertaking or estate or with a view to a composition, assignment or arrangement with such Party’s creditors; the Party being or becoming unable (or admitting its inability) to pay its debts generally as they fall due or being (or admitting to being) otherwise insolvent or stopping, suspending or threatening to stop or suspend payment of all or a material part of its debts or making a general assignment or arrangement or composition with, or for the benefit of, its creditors (or any class of them); any business rescue proceedings under the Companies Act, 2008, being commenced against it or a resolution being proposed to place the Party under supervision under the Companies Act, 2008, at any duly convened meeting of the shareholders or board of directors of the Party; any liquidator, curator, judicial manager, business rescue practitioner or similar officer being appointed in respect of the Party or any part of its assets, undertaking, business or estate or such entity (or any organ of that person or entity) requests such appointment; the Party committing any act which, if it were a natural person, would be an act of insolvency as contemplated in the Insolvency Act. The non-defaulting Party shall be entitled to terminate this AGREEMENT, where the defaulting Party fails to remedy, where it is capable of remedy, or persists in, any breach of any of its obligations under this AGREEMENT after having been required to do so within a period of 30 (thirty) days.
18.3 Should notice to terminate at the end of the INITIAL TERM not be given in terms of clauses 18.1 and 18.2 above, THIS SERVICE AGREEMENT and provision of the VOIP SERVICE by MYCALLSA to CLIENT shall be automatically renewed for further periods of 1 (one) month each, on an indefinite basis, until terminated.
19. EFFECTS OF TERMINATION
19.1 Termination of this SERVICE AGREEMENT in whole or in part, however caused, shall be without prejudice to any rights or liabilities accrued at the date of termination.
On termination of this SERVICE AGREEMENT:
19.1.1 all benefits (including rights of use and licenses) conferred upon the CLIENT in terms of this SERVICE AGREEMENT, shall immediately cease and the CLIENT shall have no claim, whatsoever, against MYCALLSA for the loss of such benefits;
19.1.2 the CLIENT shall speedily return all MYCALLSA equipment located on the CLIENT Premises or facilitate MYCALLSA removal of such equipment from other Facilities; and
19.2 The termination of this AGREEMENT shall not of itself give rise to any liability on the part of MYCALLSA to pay any compensation to the CLIENT, including but not limited to, for loss of profits or goodwill.
19.3 MYCALLSA shall be entitled to cancel all orders for Services placed by the CLIENT prior to the termination date, whether or not such orders have been accepted by MYCALLSA, without incurring any liability of any nature to the CLIENT.
20. MISCELLANEOUS MATTERS
20.1 The parties agree that the terms and conditions of THIS AGREEMENT are the result of negotiations between them and that this agreement shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this agreement.
20.2 No agreement amending, adding to, deleting, varying or cancelling this agreement, including this clause shall be effective unless reduced to writing and signed by or on behalf of all the parties.
20.3 No waiver by a party of any of its rights under this agreement, including this clause shall be effective unless reduced to writing and signed by or on behalf of such party.
20.4 No indulgences granted by a party in favour of the other party shall constitute a waiver or abandonment of any of the party’s rights under this agreement; accordingly, that party shall not be precluded, as a consequence of having granted such indulgence, from exercising any of the rights against any other party which may have arisen in the past or which may arise in the future.
20.5 The agreement shall be binding on the parties hereto and their respective successors and assigns. Neither party shall be entitled to assign or otherwise transfer the benefit or burden of all or any part of the agreement without the prior written consent of the other party except that MYCALLSA may assign its rights and obligations under the agreement without the approval of CLIENT to an entity which acquires part, all and/ or substantially all of the assets of MYCALLSA provided that in no event shall such assignment relieve MYCALLSA of its
obligations under the agreement.
20.6 The relationship between the parties hereto shall not be that of partners. Nothing herein contained shall be deemed to constitute a partnership between them, merge their assets, or their fiscal or other liabilities or undertakings. The common enterprise between the parties shall be limited to the express provisions of THIS AGREEMENT. Nothing herein contained shall allow a Party to act as an agent of any other party.
20.7 Any costs, including attorney and own client costs and collection commission, incurred by a party arising out of the breach by any other party of any of the provisions of this agreement shall be borne by the party in breach.
20.8 MYCALLSA and CLIENT undertake to perform any obligations required by statutory regulations, as amended from time to time, and to assist the other party upon reasonable request to do so.
20.9 The Client agrees to receive standard email correspondences and notifications from MyCallSA via email (examples of such correspondences and notifications include, but is not imited to monthly statements, invoices, product and service updates, standard business correspondence).
21. INDEMNITIES
21.1 The CLIENT hereby indemnifies and holds MYCALLSA harmless against all loss, damage, costs and/or expenses which MYCALLSA may suffer or incur and any and all claims which may be brought against MYCALLSA by any third party in respect of any loss, liability, damage, costs and/or expenses of any nature whatsoever as a consequence of or which may arise from or is attributable to the engagement of the CLIENT, the provision of the Services by the CLIENT or any acts or omissions on the part of the CLIENT.
22. LIMITATION OF LIABILITY
22.1 Neither Party shall be liable to the other Party for any indirect or consequential loss or damage (including any loss of profit/contract/opportunity) which may be suffered by the other Party under or in connection with this Agreement.
22.2 The total liability of either Party under or in connection with this Agreement shall, to the extent permitted by Law, not exceed the aggregate value of the VOIP SERVICES that have been carried out under this SERVICE AGREEMENT at the time at which any claim is made.
22.3 Where the insurance cover of any insurance policy that is procured by either Party under this Agreement, which is capable of being called upon to cover any liability/damage, exceeds the aggregate cap of liability, such aggregate cap of liability shall not compromise the insurance cover that can be claimed by either Party to cover the liability/damage in question.
22.4 Accordingly, the imposition of such aggregate cap of liability shall not be construed as a stipulation alter in favour of any insurer who would otherwise be liable to make payment from the insurance cover to cover a claim that is in excess to such aggregate cap of liability under such insurance policy.
22.5 This Clause 22 shall not limit liability of either Party in any case of fraud, deliberate default or reckless misconduct by either Party
23. FORCE MAJEURE
23.1 If either party is prevented or restricted directly or indirectly from carrying out all or any of its obligations under this agreement resulting from any cause beyond the reasonable control of that party, including without limitation, acts of God, civil commotion, riots, insurrection, lock-outs, acts of government, fire, theft, explosion, the elements, epidemics, governmental embargoes or like causes, the party so affected shall be relieved of its obligations hereunder during the period of such obstruction, but only to the extent of the obstruction, and shall not be liable for any delay or failure in the performance of any obligations hereunder or loss or damage of any
nature whatsoever, whether general, special or consequential, which the other party may suffer as a result, provided that written notice shall within 48 (forty eight) hours of the first occurrence of the obstruction be given of to the other party, unless the obstruction renders such notice impossible.
23.2 The parties hereby agree that should this obstruction last more than 30 (thirty) days, the party who has not invoked force majeure may terminate THIS AGREEMENT on notice to the other party.
24. DISPUTE RESOLUTION
24.1 In the event of there being any dispute or difference between the Parties arising out of this Agreement and/or any SCS, the said dispute or difference shall on written demand of either party be submitted to arbitration in Sandton in accordance with the AFSA rules, which arbitration shall be administered by AFSA.
24.2 Nothing herein contained shall be deemed to prevent or prohibit a Party to the arbitration from applying to the appropriate court for urgent relief or for judgment in relation to a liquidated claim.
24.3 The Parties agree that the written demand by MYCALLSA to the dispute in terms of clause 24 that the dispute or difference be submitted to arbitration is to be deemed to be a legal process for the purpose of interrupting extinctive prescription in terms of the Prescription Act, 1969.
25.ARBITRATION
25.1 Should any dispute or difference arise between the parties relating to or arising out of THIS AGREEMENT, including the implementation, execution, interpretation, rectification, termination or cancellation of this agreement then the dispute or difference will be referred for arbitration to the Arbitration Foundation of South Africa (“AFSA”) in terms of AFSA’S arbitration rules for the time being in force.
25.2 This clause 25 shall constitute each party’s irrevocable consent to the arbitration proceedings, and no party shall be entitled to withdraw from such arbitration proceedings or to claim that it is not bound by this clause.
25.3 Each of the parties hereby irrevocably agrees that the decision of the arbitrator in the arbitration proceedings:
25.3.1 shall be final and binding on each of them; and
25.3.2 will be carried into effect; and
25.3.3 Be made an order of any Court to whose jurisdiction the parties are subject.
25.4 Notwithstanding the foregoing, nothing in this clause shall be construed as precluding any party from applying to Court for a temporary interdict or other relief of an urgent nature, pending the decision of the award of the arbitrator in terms of this clause 25.
25.5 Notwithstanding CLIENT’S rights in terms of this clause 25, all amounts invoiced by MYCALLSA to CLIENT shall be due and payable in full pending the outcome of arbitration proceedings and CLIENT shall not be entitled to withhold any payment pending the outcome of the arbitration.
25.6 This clause 25 is severable from the rest of this agreement and shall, notwithstanding the termination of this agreement, remain in full force and effect.
26. APPLICABLE LAW AND JURISDICTION
26.1 This Agreement will in all respects be governed by and construed under the laws of the Republic of South Africa.
26.2 Notwithstanding the provisions of clause 25 above, MYCALLSA shall be entitled in its sole and absolute discretion to institute any action against the CLIENT in any court having jurisdiction and the CLIENT hereby consents to the jurisdiction of the Magistrate’s Court having jurisdiction in respect of all legal proceedings connected with this agreement, notwithstanding that the amount of the matter in dispute exceeds the court’s jurisdiction.
26.3 Notwithstanding the aforegoing, MYCALLSA is entitled to institute proceedings against the CLIENT in the division of the High Court having jurisdiction in the matter.
26.4 The Parties hereby consent and submit to the non- exclusive jurisdiction of the South Gauteng High Court, Johannesburg in any dispute arising from or in connection with this Agreement.
27.DOMICILIUM AND NOTICES
27.1 The parties choose domicilium citandi et executandi (“domicilium”) for all purposes relating to this agreement, including the giving of any notice, the payment of any sum, the serving of any process, the
physical addresses set out on the SUBSCRIPTION FORM.
27.2 The parties shall be entitled from time to time, by giving written notice to the other, to vary its:
27.2.1 physical domicilium to any other physical address;
27.2.2 to vary its postal domicilium to any other postal address; and
27.2.3 to vary its facsimile domicilium to any other facsimile number.
27.3 Any notice given or payment made by either party to the other (“addressee”) which is:
27.3.1 delivered by hand between the hours of 09h00 and 17h00 on any business day to the addressee’s physical domicilium for the time being shall be deemed to have been received by the addressee at the time of delivery;
27.3.2 posted by prepaid registered post to the addressee’s postal domicilium for the time being shall be deemed (unless the contrary is proved by the addressee) to have been received by the addressee on the fourteenth day after the date of posting.
27.3.3 Any notice given by either party to the other which is successfully transmitted by facsimile to the addressee’s facsimile domicilium for the time being shall be deemed (unless the contrary is proved by the addressee) to have been received by the addressee on the business day immediately succeeding the date of successful transmission thereof.
27.4 This clause 27 shall not operate so as to invalidate the giving or receipt of any written notice that is actually received by the addressee other than by a method referred to in this clause 27.
27.5 Any notice in terms of or in connection with this agreement shall be valid and effective only if in writing and if received or deemed to be received by the addressee.
28.ENTIRE AGREEMENT
28.1 THIS AGREEMENT constitutes the entire AGREEMENT between MYCALLSA and CLIENT relating to the subject matter hereof, notwithstanding anything in CLIENT’S enquiry, specification, acceptance, order or other documentation to the contrary. If there shall be any provision of any ADDENDUM which conflicts with any provision of these terms and conditions, unless agreed to the contrary, the latter shall prevail.
28.2 Any of the terms of this SERVICE AGREEMENT may be amended from time to time as required by legal and or other developments. While MYCALLSA will take steps to notify CLIENTS of amendments CLIENTS retain the sole responsibility for acquainting themselves with such amendments and will be regarded as having agreed thereto through continued use of the MYCALLSA VOIP SERVICE.
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